' This judgment will dispose of Criminal Appeal No,806 of 2002 and Criminal Revision No,922 of 2002 directed against the judgment dated 19-4-2002 passed by the learned Additional Sessions Judge, Faisalabad, whereby he convicted the appellant under section 302(b), P.P.C. And sentenced him to undergo life imprisonment in both the murders on two counts with fine of Rs,50,000 as compensation as required under section 544-A, Cr.P.C. In both the cases on two counts also or in default thereof six months S.I. Each.
2. The brief facts of the case as narrated in the F.I.R. By Mumtaz Hussain complainant are that on 12- 2-1995 at about 3-00 p.m. He alongwith his brother Zahoor Ahmad and Ejaz Hussain was going to his house, that his brother Zahoor Ahmad and Ejaz Hussain were going ahead of 'him and when they after crossing the street of the village reached near the house of Saad Ullah son of Amir Peroka Kharal and were about to enter in the main bazar of the village, there emerged from Bhaithak of Muhammad Aslam son of Ahmad Khan, Umar Hayat, Muhammad Amin and Ahmad Yar, all the three armed with .222 rifles and Mumtaz Hussain son of Noor Muhammad while armed with 7 mm rifle. They raised Lalkara that today Zahoor Ahmad and Ejaz Hussain should not go alive, that on hearing their Lalkara there reached Qasim Ali and Nazeer Ahmed, that Mumtaz Hussain made a fire shot with his 7 mm rifle hitting on the upper arm of Ejaz Hussain, Umar Hayat made two consecutive fire shots hitting on the right side of belly of Ejaz Hussain under his umbilicus who fell on the ground. Zahoor Ahmad after retreating tried to run in the street but Ahmad Yar made a fire shot with his .222 rifle hitting on his right shoulder. That Muhammad Amin made a fire shot with his .222 rifle which hit on front portion of right flank of Zahoor Ahmad and Zahoor Ahmad fell on the ground. On hue and cry raised by the complainant and his companions all the accused fled away from the spot while the injured Zahoor Ahmad and Ejaz Hussain after some time succumbed to the injuries. The motive behind the present occurrence was that about 4-1/2 years before Zahoor Ahmad deceased had abducted Mst. Irshad Bibi who was real maternal niece of Umar Hayat and Mumtaz Hussain accused.
3. After getting information about the occurrence the local police completed all the necessary formalities. Thereafter Muhammad Zafar Inspector, S.H.O. Alongwith his subordinates proceeded to the spot. He prepared injury statement Exh.P.F and inquest report Exh.P.G. Of Ejaz Hussain deceased.
He also prepared injury statement and inquest report of deceased Zahoor Ahmed vide memo.
Exh.P.H. And Exh.P.J. Respectively. He collected bloodstained earth from both the places where mu- der of Zahoor Ahmad and Ejaz Hussain had taken place vide recovery memo. Exh.P. And Exh.P.L and Exh.P.K. Last-worn clothes of both the deceased were received by him vide memo. Exh.P.A. And Exh.P.B. Respectively. On 28-2-1995 he arrested Umar Hayat and Muhammad Amin and on 8-3- 1995 Umar Hayat while in police custody got recovered a rifle .222 bore vide memo. Exh.P.O. On the same day Amin got recovered .222. Bore rifle vide memo. Exh.P.Q. All the remaining accused were declared innocent. Ultimately after completing the investigation he submitted the challan.
4. Prosecution in order to prove its case has produced as many as 11 witnesses including Doctor, Investigating Officer, eye-witnesses and other formal witnesses. Thereafter statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded their innocence. Learned trial ' Court after taking into consideration every aspect of the case and hearing the arguments advanced by both the parties convicted and sentenced the appellant as mentioned above. Hence this appeal.
5. Learned counsel for the appellant in support of this appeal submits that appellant has been falsely implicated in this case, he was not connected with the motive of this case, no recovery was effected from him. In three successive investigations he was found innocent. He was placed in Column No,2 of the challan, that his three co-accused were murdered before the commencement of the trial, that in all there were six accused including the two co-accused of abetment namely ' Muhammad Aslam and Liaqat Ali, they were also murdered later on by the complainant party. He submits that in fact on the day of occurrence appellant was not in the village, he was at Faisalabad. He submits that case against the appellant is of no evidence and he is entitled to acquittal.
6. On the other hand learned counsel for the State submits that it was a case of promptly lodged F.I.R. With specific role attributed to the appellant. It was a broad daylight occurrence, that there was no question of mistaken identity, that ocular account is corroborated by medical evidence.
Learned State Counsel submits that though the appellant was found innocent in three investigations on the ground that he was not present at the spot but no witness in this regard was produced before the learned trial Court nor he himself appeared before the learned trial Court as his own witness in defence as required under section 540(2), Cr.P.C., that the learned trial Court was wrong in awarding lesser sentence to the appellant and the reasonings given by the learned trial Court are improper and illegal. He supports the judgment of the learned trial Court.
7. I have heard the learned counsel for the parties. In the instant case there are two deceased persons namely Zahoor Ahmad and Ejaz Hussain, F.I.R. Was lodged by Mumtaz Hussain who named four accused persons to be present at the spot namely Umar Hayat, Muhammad Amin, Ahmad Yar' and Mumtaz Hussain while two accused namely Muhammad Aslam, Advocate- and Liaqat All were shown as abetter. Including Mumtaz Hussain complainant there were two other eye-witnesses namely Qasim Ali son of Qaim Ali and Nazir Ahmad son of Tajja. Mumtaz Hussain complainant was real brother of Zahoor Ahmad, Qasim Ali was maternal uncle of Ejaz Hussain deceased while he was also first cousin of Zahoor Ahmad deceased. Nazir Ahmad P.W. Was paternal uncle of Zahoor Ahmad deceased. The residence of Nazir P.W. Was at a distance of 3-1/2 miles away from the place of occurrence while Qasim Ali was living at a distance of 1-1/2 to 2 Killas from the place of occurrence. According to the F.I.R. The allegation against Ahmad Yar appellant was that he was armed with firearm and he caused injury on the back of Zahoor Ahmad. The motive in the instant case is that Irshad Bibi the maternal neice of Umar Hayat accused and Mumtaz Hussain accused mentioned above was abducted by Zahoor Ahmad deceased. Ahmad Yar appellant is not connected with motive of this case. In the challan report under section 173, Cr.P.C. Mumtaz Hussain, Ahmad Yar, Liaqat Ali and Muhammad Aslam were placed in Column No,2 while Umar Hayat and Muhammad Amin were placed in Column No,3 of the challan. Before trial, out of six accused, five were murdered by the complainant party and only the trial of Ahtnad Yar appellant was held.
Mumtaz Hussain complainant also died before the commencement of trial and he did not appear before the learned trial Court while Qasim Ali and Nazir Ahmad appeared as P.Ws.9 and 10 respectively. They both are close relative of the deceased. Three investigations have taken place in this case, first by Zafar Ali, Inspector who had stated before the learned trial Court that on the date of occurrence 31 persons appeared before him in plea of innocence of the appellant Ahmad Yar.
He further stated that on 24-2-1995, 209 persons appeared in plea of innocence of the four accused who were placed in Column No,2 of the challan. He also stated before the learned trial Court that his investigation was verified by the D.S.P./S.D.P.O., then by the S.P., C.I.A. The result of the investigations were that this occurrence was committed by Umar Hayat and Muhammad Amin who were murdered later on by the complainant party. Ahmad Yar was never arrested during the course of investigations and his arrest was put off by the Investigating Agencies. He was placed in Column No,2 of the challan form. In fact he was summoned by the learned Additional Sessions Judge on 9-7-1995. It has also come on record that the two deceased persons were of desperate character and they were involved in many criminal cases of heinous nature registered under sections 392, 379, P.P.C. And 13/20/65, Arms Ordinance. Even no time has been given in Column No,3 of the inquest report of Zahoor Ahmad which shows that F.I.R. Was lodged after due A deliberation and consultation. In the instant case F.I.R. Was lodged at 4-15 p.m. As has been stated in the F.I.R.
And occurrence had taken place at 3-00 p.m. It was the duty and obligation of the writer of the F.I.R.
Who had conducted the investigation in this case at the first instance, to mention the time of knowing about the death of the deceased in Column No,3 of the inquest report. Even no crime empty was recovered from the spot although, four accused persons fired at the spot. Although, the opinion of the police is not binding on the Court in murder cases but in peculiar circumstances of the present case, I am of the opinion that participation of Ahmad Yar in the instant case is doubtful so while granting benefit of doubt this appeal is accepted and conviction and sentence awarded to the appellant is set aside. He shall be released if he is not required in any other case. Criminal revision is also dismissed.